Adult entertainment overview

First Amendment freedom of expression is directly at stake in the ongoing struggle between purveyors of adult entertainment and defenders of public decency.

Many people do not understand why pornography and nude dancing would be considered forms of protected expression, but in fact the First Amendment protects many forms of controversial speech and expression.

Supporters of the billion-dollar adult-entertainment industry argue that nude dancing, for instance, deserves no less First Amendment protection than more mainstream forms of performance. They say it contains the same elements of eroticism found in so-called “legitimate” theater and dance.

Yet cities and towns wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few.

When adult-club owners fight these regulations in the courts, cities often pass new legislation, leading to more regulations and more lawsuits. The cycle has resulted in the development of a substantial body of First Amendment case law, which serves to address the continuing tension between government efforts to regulate the adult-entertainment industry and the industry’s attempts to claim First Amendment protections.

But it is clear from U.S. Supreme Court decisions that the Court believes the Constitution protects expressive conduct, and that it does not equate nudity with obscenity.

And though two types of pornography, obscenity and child pornography, receive no First Amendment protection, the First Amendment generally protects pornography that does not fall into these categories — at least for adult viewers. (Sometimes material is classified as “harmful to minors.”)

Even a 1986 Attorney General Commission Report on Pornography said that “not all pornography is legally obscene.” The question becomes which types of pornography cross the line into the unprotected areas of obscenity and child pornography. To put it another way, courts often struggle with whether pornography is too “hard core.”

Local officials, meanwhile, struggle with what they call the “secondary effects” of adult businesses — increases in crime and decreases in property values in the neighborhoods where they locate. Municipalities, officials say, must be allowed to prevent blight and red-light districts by regulating nude-dancing clubs and adult bookstores.

The fundamental First Amendment principles that apply in the context of adult content and entertainment are as follows:

The First Amendment protects more than political speech. In 1948 the Supreme Court reversed the conviction of a New York bookseller who sold magazines that contained fictional stories of murder and bloodshed. In a ringing passage supporting freedom of speech, the Court wrote in Winters v. New York that it did not accept the argument that “the constitutional protection for a free press applies only to the exposition of ideas.” In an oft-cited passage, the majority declared:

“The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”

The First Amendment serves to protect speech on a wide variety of nonpolitical topics, including the arts, entertainment and movies (see Burstyn, Inc. v. Wilson, 1952). The Court has extended free-speech protection to such different types of speech as literature, art, music, plays, commercial advertising, television and several types of expressive conduct. The First Amendment serves as the blueprint for personal liberty. To restrict freedom of speech only to political matters would severely narrow the scope of liberty.

The First Amendment protects more than verbal communication. The most common understanding of “speech” is verbal communication. But people can communicate a message in various ways without verbalizing their thoughts. We communicate through the clothes we wear (or don’t wear), the signs we display, the bumper stickers we place on our vehicles and through certain types of conduct in which we engage.

The First Amendment protects expression that many people may find offensive or disagreeable. The First Amendment, as part of the Bill of Rights, is counter-majoritarian. It protects the viewpoints of those in the minority from being oppressed by what Frenchman Alexis de Tocqueville termed the “tyranny of the majority” in Democracy in America (1835). The First Amendment serves a particular purpose in safeguarding viewpoints and expression that challenge the existing state of affairs.

Adult entertainment may offend; it may fail to appeal to the higher intellect. But First Amendment protection for adult establishments affects more than disrobing dancers. It affects all who care about constitutional freedoms.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

The First Amendment to the U.S. Constitution – the cornerstone of American democracy – is the focus of the National First Amendment Moot Court Competition. Recognized as one of the nation's finest constitutional-law competitions, this annual event features a current First Amendment controversy.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

Past participants in the National First Amendment Moot Court Competition have represented law schools nationwide, from Brooklyn Law School to Duke University to Arizona State to Harvard.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.